Las Vegas Sun

March 28, 2024

Supreme Court enters precarious ground

Gov. Kenny Guinn made history last week when he petitioned the Nevada Supreme Court to force the Legislature to end its tax stalemate, balance the state budget and fund schools for the next biennium.

There have been many cases where state courts around the country have ruled on narrow issues such as gubernatorial line-item budget vetoes and spending for particular government programs.

But observers say they know of no other instance in the nation when a state Supreme Court has been asked to intervene to resolve a state's entire revenue and spending plan.

That's precisely what happened on Tuesday when Guinn petitioned the Supreme Court to resolve a legislative deadlock that has left the state without a balanced budget for fiscal 2004 as required under the Nevada Constitution.

The new fiscal year began Tuesday morning with the Legislature deadlocked over how to fund a $4.95 billion budget over the next two years.

Budgets -- which require a simple majority vote -- were approved by the state Senate and Assembly for all but kindergarten through 12th grade education. But proposed new business and entertainment taxes and increases in cigarette, beer and liquor taxes failed to get the two-thirds approval required in both legislative houses.

Jonathan Entin, a professor at the Case Western Reserve University Law School in Cleveland, said he believes there is a good chance Guinn and the Legislature will be forced by the Supreme Court to solve the budget crisis on their own.

Entin has written articles on attempts by judges to have legislators vote in a particular way. Although not familiar with Nevada's constitution, he said the Supreme Court will be treading on dangerous legal ground if it issues an opinion that overrides the constitution's requirement that taxes need two-thirds approval in both houses.

"They would have to say that the plain language in the constitution does not mean what it says," Entin said. "I don't know of any situation like what I understand is going on in Nevada.

"I would be rather surprised if the court ordered the Legislature to raise taxes. Courts in most states have been reluctant to order raises in taxes. I would expect the Nevada Supreme Court to do what it could to avoid getting into that."

Entin said his reasoning hinged on the fact that it is "politically" possible to achieve a balanced state budget while requiring a supermajority to approve new taxes. One way, he said, would be for Guinn to support a budget cut, which is desired by Assembly Republicans who have indicated they would like to see reductions in welfare spending.

"The court might say that this is a political dispute and that it's not appropriate for the court to resolve," he said. "Or, they could decide on the merits and order the Legislature to raise taxes. But that would be dangerous for the court to do. If the court is prepared to circumvent a pretty clear constitutional provision, who is going to check the court?"

Entin mentioned a 1973 case settled by the Supreme Court of Appeals in West Virginia that could resonate with lawmakers who want full funding for education in Nevada.

In Brotherton v. Blankenship, West Virginia's high court ordered then-Gov. Arch Moore Jr. to restore $166.8 million in state funding for education after he eliminated that funding from the budget, leaving the school budget with no money.

The court ruled that Moore's action was unconstitutional in that "a thorough and efficient system of free schools is of paramount importance in a free society and that neither the Legislature nor the executive branch of government may perform any act which would result in the elimination of this safeguard."

Keon Chi, senior fellow at the nonpartisan Council of State Governments in Lexington, Ky., a research and service organization for all three branches of government, said the case in Nevada is rare.

"It is rather unusual to ask a Supreme Court to intervene immediately rather than go through a lower court," Chi said. "I can't think of any other case like this that went directly to a supreme court."

Chi said there is a chance that the Nevada Legislature could be weakened if the Supreme Court directs Guinn to take action on the budget.

"It can leave a judicial precedent so that the executive branch can use it as a prerogative to act on the budget but the court also could say that the governor can exercise power only for a year and not after that," Chi said.

Nevada is one of seven states that began Tuesday with no budget for fiscal 2004. The others are California, New Jersey, Rhode Island, Connecticut, Oregon and New Hampshire.

"Oregon, New Hampshire and Connecticut have short-term spending plans so the governors there were allowed to operate the state government without shutting the doors," Chi said.

Legislative budget battles are still going on in California and Rhode Island, but the New Jersey Legislature reached a compromise Tuesday morning after its budget deadline had passed.

Nevada state archivist Guy Rocha said Guinn's court petition represented the first time in state history that a governor urged the Supreme Court to force the Legislature to act on any issue, let alone the budget.

"It's one of the few times I can say that this is an honest to God first because you won't find a precedent in Nevada history," Rocha said.

But Rocha said there was at least one prior situation in state history that parallels the current budget crisis.

That situation -- the apportionment of state lawmakers -- was sparked by the 1962 U.S. Supreme Court decision in Baker v. Carr. The court, in a case involving the Tennessee Legislature, ruled that federal courts could grant relief if they found that the way a legislature was apportioned violated an individual's constitutional rights of representation.

Another U.S. Supreme Court ruling in 1964 outlawed the practice of allowing an equal number of state senators to come from each county regardless of the size of the county populations.

As noted by authors Eleanore Bushnell and Don Driggs in the 1984 book, "The Nevada Constitution: Origin and Growth," Nevada had one senator from each of its 17 counties even though Clark County represented 44.6 percent of the state population as of the 1960 Census.

The U.S. District Court in Las Vegas issued an order that it would take up legislative apportionment to comply with the U.S. Supreme Court rulings if the Nevada Legislature failed to act.

"The 1965 session of the Legislature, although duly warned of impending judicial intervention unless it acted, seemed paralyzed by the specter of reapportionment," Bushnell and Driggs wrote. "Six measures relating to legislative apportionment were introduced, but only one was passed.

"It requested Congress to propose an amendment to the United States Constitution permitting one house of a state legislature to be apportioned on factors other than population if the voters of the state approved."

Congress did not take up Nevada's proposal and the Nevada Legislature failed to come to agreement on reapportionment during its 1965 general session.

But Clark County activist Flora Dungan -- then a former assemblywoman who would later return to serve a second stint in the Legislature -- successfully sued then-Gov. Grant Sawyer in federal court after the general session to force a special legislative session to reconsider reapportionment.

"The task at hand is, without question, the most demanding any governor has requested this body to undertake," Sawyer told lawmakers in October 1965 at the opening of the special session. "It is a difficult task, one that requires selfless and enlightened judgment; one that demands the rebuilding of the very foundation on which our state Legislature is based."

Ultimately, the Legislature agreed to reapportionment during that session. They amended that action in 1971. Today, 14 of the 21 senators come from Clark County, which reflects the fact that Southern Nevada has roughly two-thirds of the state's population.

The decision by Guinn to petition the Nevada Supreme Court has the National Conference of State Legislatures worried about the possibility that the legal action could weaken the Nevada Legislature. The organization, based in Denver, serves as a nonpartisan forum used by legislators to improve the effectiveness of legislatures and learn about innovative policies.

"It is unprecedented at least in the past 20 years," conference fiscal analyst Arturo Perez said of Nevada's dilemma. "We find it unsettling. This organization is concerned anytime an attempt is made by the executive or judiciary branch to weaken the legislative role in budget setting.

"There are other examples around the country where governors have attempted to exert a greater amount of authority with regard to the budget process. Kentucky probably comes closest to the situation in Nevada."

In spring 2002, Kentucky Democrats who controlled the state House and Republicans who ran the Senate approved a legislative branch budget for fiscal 2003 but couldn't agree on budgets for the judicial and executive branches. The hang-up was that the Democrats wanted the budgets to include public financing for this year's Kentucky gubernatorial race, something GOP lawmakers opposed.

After a special legislative session in May 2002 failed to achieve a compromise, Democratic Gov. Paul Patton exercised emergency authority by devising his own spending plan for the fiscal year that began last July. His decision led to a lawsuit that was filed in a state circuit court, raising constitutional questions about the governor's action.

The lawsuit was filed by state Treasurer Jonathan Miller, a fellow Democrat, who simply wanted clarification as to whether Patton acted constitutionally.

But state Senate President David Williams, a Republican, intervened in the lawsuit and argued that Patton illegally suspended certain state laws by implementing his own spending plan. Williams and fellow Republicans were especially peeved at what they believed was improper distribution of coal tax revenue to counties for development projects.

The Republicans got little sympathy from Franklin County Circuit Judge William Graham, who chastised the lawmakers during an August hearing on the lawsuit, according to the Associated Press.

"Despite the fact that the Legislature has abrogated its constitutional responsibility to enact a budget, state government has lumbered on," Graham was quoted as saying.

As for the coal tax controversy, Graham said: "We're not going to allow one senator to pick out one little item of the budget that he disagrees with and bring state government to a halt."

Others also intervened in the lawsuit. One party, Kentucky's Administrative Office of the Courts, was looking out for its own budget interests. Another intervener, a former state legislative budget analyst, wanted a government shutdown until the Kentucky General Assembly approved the entire budget.

But the lawsuit fizzled and was ultimately dismissed by Graham in April after all parties agreed to drop the case. The reason: the Kentucky Legislature had approved a state budget for fiscal 2004, rendering moot the issues surrounding the fiscal 2003 budget.

"The question of whether Gov. Patton had the constitutional authority to enact a spending plan by executive order in the face of the Legislature's failure to enact a budget remains unanswered," Graham was quoted as saying by the Louisville Courier-Journal. "And that's a very important question."

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